Linda Greenhouse Lavishes More Love on a Liberal Justice

By

Brent Baker

May 5, 2009 - 7:14am

The New York Times' former Supreme Court reporter, liberal Linda Greenhouse, came out of journalistic retirement (she's now senior fellow at Yale Law School) to write the lead Sunday Week in Review profile of retiring Supreme Court Justice David Souter, "Justice Unbound - Washington is only where Souter goes for his 'annual intellectual lobotomy.' At home, he reads history."

Souter was nominated by the first President Bush but disappointed conservatives by often voting with the court's liberal bloc, which may be why Greenhouse wished him such a fond farewell:

David H. Souter had no agenda 19 years ago when he took his seat on the Supreme Court, but he did have a goal: not to become a creature of Washington, a captive of the privileges and power that came with a job he was entitled to hold for the rest of his life. In this, no matter what else can be said about his tenure on the court, he succeeded brilliantly.

Just a few decades ago, this would hardly have been a singular accomplishment. Even the most distinguished Supreme Court justices often disappeared from public view, speaking only through their opinions - the full texts of which were all but inaccessible to ordinary citizens without access to a law library. But in this media-saturated age, the justices are everywhere. If they are not on book tours, they are opining on the authorship of Shakespeare's plays, or mingling with their peers in Europe, or on C-Span addressing high school students, or at least delivering named lectures at law schools.

None of this held any appeal for David Souter, who after returning home from his Rhodes scholarship at Magdalen College, Oxford, crossed the Atlantic only once again, for a reunion there. Who needed Paris if you had Boston, he would remark to friends. When the court is in recess, he gets in his Volkswagen and heads to Weare, N.H., to the small farmhouse that was home to his parents and grandparents.

SUSPEND Excerpt

Greenhouse took sides on a recent Supreme Court decision:

Constitutional change, he explained, "comes about because judges evaluate significant facts differently," or they "discover some relevance to a constitutional rule where earlier judges saw none." He said that "historians can come to the rescue" by explaining how and why this happens. His ostensible text was the Supreme Court's journey from the "separate but equal" holding of Plessy v. Ferguson in 1896 to the desegregation ruling in Brown v. Board of Education 58 years later.

But there was an unspoken, and more pointed, subtext: his continued dismay at the court's 5-to-4 ruling two years ago that invalidated the effort by the public schools of Louisville, Ky., to prevent resegregation by use of a modestly race-conscious student assignment plan. The dissenters - and Justice Souter was one - viewed the opinion by Chief Justice John G. Roberts Jr. that this once-segregated city lacked any "compelling interest" in preserving its progress toward integration as profoundly ahistorical and as a troubling signal for the court's future approach to government actions that touched on race.

Their fears seemed well founded this past week, during the court's final argument session of the term. The question was whether a central portion of the Voting Rights Act is constitutional, and as the argument progressed, it appeared quite likely that the answer from Chief Justice Roberts and his conservative allies might well be "no."

Greenhouse likes liberal justices; she wrote "Becoming Justice Blackmun," a biography of the liberal justice who wrote the Court's notoriously flawed opinion on Roe v. Wade. And she clearly loved the ultra-liberal Justice William Brennan, as she wrote in a July 2008 Q&A session on nytimes.com just before her retirement:

Obviously, not every opinion Justice Brennan put his name to will stand the test of time. But many will. A personal note - I took some time off from the court beat in the mid-1980's to have a baby and cover Congress for a couple of years. When I came back in 1988, Justice Brennan was 82 and the end of his tenure was in sight. He was one of the first people I ran into, in a court corridor. "I'm glad you're back," he said to me. I replied, "I'm glad you're still here." See: www.timeswatch.org[3]

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